Puzzlement

For some reason I can’t post comments on Gene Callahan’s blog, so I’ll put the comment here. In response to the post where Gene says:

Obligation is the crucial idea denied by libertarian political theory. We can have obligations that we did not agree to take upon ourselves.

I reply:

I can think of hardly any libertarian political thinkers who say that we have no unchosen obligations. (Rand says it, but that has more to do with her metaethics than her political commitments.) Most libertarians would say that we have a) some enforceable obligations we didn’t choose (like the obligations not to kill, steal, assault, etc.), plus b) plenty of moral obligations that aren’t enforceable.

Of course it’s true that libertarianism denies the existence of various enforceable obligations that other theories assert; but libertarianism also asserts the existence of enforceable obligations that other theories deny.

46 Responses to Puzzlement

And I would add that this horrific passage from David Walsh (which Gene quotes, apparently favourably) —

We are obliged to support the political constitution under whose order we exist, not because we derive benefits from it or because we have given our consent, but because it is part of the order of being.

— would justify slavery, human sacrifice, and just about any other evil one can name. The fact (denied by virtually no major libertarian thinkers) that we have obligations we didn’t choose doesn’t mean that we have the specific obligations that are claimed by some particular political regime.

I’m confused as to how that portion of the Walsh quote follows from the prior portion. Regardless, I’m curious to know if you doubt the prior portion:

The political is never merely an option, for we are embedded in a network of obligations before we even begin. This was the weak point of all social contract explanations of civil society, with their inevitable implication of the arbitrariness of a state founded on individual choice. Kant reminds us of the extent to which the state provides the conditions for the exercise of free choice and is thus beyond the realm of choice.

This part is okay, so long as one interprets “political” broadly (so it doesn’t necessarily involve a state):

The political is never merely an option, for we are embedded in a network of obligations before we even begin. This was the weak point of all social contract explanations of civil society, with their inevitable implication of the arbitrariness of a state founded on individual choice.

But I deny this part:

Kant reminds us of the extent to which the state provides the conditions for the exercise of free choice and is thus beyond the realm of choice.

(Well, I don’t deny that Kant says that, but I deny that this very specific historical institution, the state, is somehow a framework fact beyond the realm of choice. And again, it strikes me that just as good, or bad, an argument could have been made on behalf of slavery.)

I think it is wise to make a distinction between duties and obligations. I think of an obligation as a relation between two people that is created by contract and is legally enforceable. Alternatively, a duty is a relation between two people that is the result of the expectations of the positions those people inhabit in society, but isn’t legally enforceable. Duties aren’t enforced through law like obligations are, but instead are “enforced” by social pressure or boycott (but not coercion).

That way of slicing things up doesn’t seem to eave any room for our obligation/duty/whatever to respect other people’s rights. It’s not the result of contracts (indeed contracts presuppose it) yet it’s enforceable.

And this whole order of being stuff is is no affirmation to the question of obligation to those who do not already agree.

Translated into literal language it just means the state exists. It does not outline a reason, purpose, or value for the state existing and does not even attempt to bridge across the is/ought dichotomy.

However it strikes me if this passage is offered in a quasi-religious setting up authority which you are obliged to accept as authority simply because it claims to be an authority and has been treated as one in the past.

But that is the very matter in question; weather this or that exercise of authority is legitimate and moral. If such an arrangement improves the human condition and aides the cooperation and coadjuvancy which is the incentive to any social bond. It seems very unlikely to me that something could be obligatory if it were detrimental on the whole.

Yeah, it seems to me that Gene is trying to let something very specific (the necessity of the state) ride in on the coattails of something very general (the necessity of a background network of social relations and practices). Whereas for me the state is a parasite on, and thus ultimately an enemy of, the background network of social relations and practices that sustains us.

From an ongoing conversation with some other libertarians, and along the lines of the Evers-Rothbard theory of Title-Transfer, we can undercut the entire conversation by saying that libertarian theory doesn’t need to recognize the concept of “obligation” (specifically those which are enforcible legal duties, and as opposed to unenforcible moral obligations).

Instead and drawing from the contract theory, we can say that title-transfer is the only legally recognized form of “obligation” that is enforcible, but only because we (the legal person) recognize as this property belonging to the other party, not that we recognize a duty or obligation from one person to the other.

Similarly, obligations such as child support or that stemming from a tort can be recognized as implicit transfers of property from the parent/tortfeasor to the child/victim with their initial actions.

Would you say that if I shoot you, I’m implicitly consenting to transfer property to your heirs, and that’s what makes a forceful response legitimate?

a) If not, then why doesn’t that show that I have a non-contractually-based obligation not to shoot you?

b) Or if so, then
b1) what are the grounds for thinking that my shooting you constitutes implicit consent to anything, and
b2) even if it does, why should we think that’s the only thing that makes a forceful response legitimate?

As regards (b2) in particular: we usually think that resort to deadly force is easier to justify in cases of self-defense than in cases of debt collection. But doesn’t your theory reduce self-defense to debt collection — or, worse yet, anticipatory debt prevention?

It’s arguably implicit consent because the maxim of the aggression is that it’s okay to use others’ bodies without their consent, and the aggressor is estopped from arguing for a different rule when it comes to use of his own body by his victim, i.e. prevented from withholding consent. Arguably.

Can we really say that it is *necessarily* immoral to violate rights? It seems to me that the existence of a right has some implications, but I am not sure if immorality is one of them. Having a right implies that defense of or enforcement of the right by the holder, against its violation, cannot be coherently criticized as being illegitimate or unjust. That is, the rights-holder certainly has a *right* to defend or enforce the right. (to use somewhat circular language). But does this necessarily mean the person being stopped or that could be stopped, is acting immorally? After all, we libertarians grant that enforcing a right is not always moral. For example if we assume there is a moral obligation to respect one’s parents (generally), then you can kick your mom out of your house just to be a dick, but it’s immoral to do it. If it can be immoral to enforce a right, maybe it can be not-immoral to violate a right. Was Jean Valjean acting immorally in stealing a loaf of bread to save his life?

It’s arguably implicit consent because the maxim of the aggression is that it’s okay to use others’ bodies without their consent, and the aggressor is estopped from arguing for a different rule when it comes to use of his own body by his victim, i.e. prevented from withholding consent.

As you know, I’m not convinced. For one thing, the maxim may not be that aggression is generally okay, but only that it’s okay in certain kinds of cases. (Hardly any aggressor thinks all aggression is okay.)

But more broadly, I think normativity has to be praxeological; all norms, including rights, have to be grounded ultimately in ends of some sort (though they can be part of the end rather than a causal means to it), because a normative demand that’s decoupled from a means-end framework is incoherent.

If it can be immoral to enforce a right, maybe it can be not-immoral to violate a right.

Since I think respect for rights stands to morality as species to genus, that argument’s going to sound to me like “If you can have dogs who aren’t poodles, why can’t you have poodles that aren’t dogs?”

Was Jean Valjean acting immorally in stealing a loaf of bread to save his life?

Since I think the contents of rights and the contents of duties are reciprocally determined, I think we need to say either that Valjean’s stealing was immoral or that it wasn’t a rights-violation. If we give up the idea that rights imply correlative duties we’re just left with Hobbes. In emergency cases like Valjean’s I’d say that the obligation correlative to the right was not the duty not to take the bread but the duty to compensate the owner.

I realize we disagree on estoppel. But “. For one thing, the maxim may not be that aggression is generally okay, but only that it’s okay in certain kinds of cases. (Hardly any aggressor thinks all aggression is okay.) ”

Well, then it’s a particularistic rule he’s positing; and if he can posit one, so can the victim: he can just use a particularistic maxim that makes it okay to coerce the malfeasor (after all, if particularistic rules are okay…..).

As for the genus-species thing: I see why you are forced to view Valjean’s action as either moral or a rights violation, but that’s because you view rights as a subset of morals. I’m not sure you are wrong, but I’m not persuaded you are right either. I’m skeptical, since it seems to me easy to come up with cases where the right thing to do is to violate the right–and it seems to me to be “cheating” to say that every such case is not actually a rights violation.

Let me expand on my point about maxims. Suppose you’re rude to me, so I shoot you. When you (or your heirs) protest, I argue: “By treating me unpleasantly, you thereby became estopped from objecting to my treating you unpleasantly.” Obviously you’d object that not all kinds of unpleasant treatment are interchangeable, and that your maxim endorsed only rudeness and not shooting.

Well, not all kinds of aggression are interchangeable either. Suppose a statist stabs you because you’re an anarchist; has she endorsed force generally, or only force against anarchists? If the latter, then she’s not estopped from complaining about your retaliation, because your retaliation isn’t force against anarchists. (Also,you’d better not use a gun if she used a knife, because then she’s not estopped from complaining about gun use.)

“but I assume you don’t mean that in the psychologistic sense of merely causing the vicitm to feel justified in retaliating. It has to mean that it would show the victim actually to be justified. So then the details are going to matter.”

Right. I just mean that we don’t need to persuade the aggressor. The point is to justify coercing him even though he still objects.

“Okay, but the example I gave wasn’t you-versus-me, it was statist-versus-anarchist.”

I know, but I think they are similar in that they are both particularistic and/or using irrelevant criteria in an attempt to distinguish things that are not distinguishable. I guess maxim drawing is an art.

” If the justifiability of retaliation depends on what the aggressor’s maxim was, and if the aggressor’s maxim really did make the use of force contingent on the victim’s being an anarchist, then what happens to the estoppel argument?”

Lawyers are obviously important in my utopia, and I would be called on quite often as an expert witness.

I think they are similar in that they are both particularistic and/or using irrelevant criteria in an attempt to distinguish things that are not distinguishable.

I agree that they’re using irrelevant criteria, but I don’t see how one can sort the relevant from the irrelevant criteria without invoking moral standards of some kind. (The differences are moral differences, not differences that would be salient to a value-neutral eye.) And if we have moral standards that tell us that rudeness is relevantly different from shooting, but that shooting people for being anarchists isn’t relevantly different from shooting people for other opinions, then it really seems to be those moral standards rather than the estoppel argument that are doing the work in sorting permissible from impermissible uses of force. As it should be!

the purpose of the hypothetical dialogue between the aggressor and victim is not to persuade the aggressor. It’s to satisfy the victim–and perhaps the civilized community of her peers–that her proposed use of force against the bad guy is justified. As such, I believe that most reasonable, civilized, fair-minded, justice-seeking people would agree that the retaliation need not be literally in-kind; that the victim should have a variety of choices; that the burden of theorizing is on the defendant. I go into my reasons for this in more detail in my Punishment and Proportionality: The Estoppel Approach, e.g. at pp. 71-72, note 49, et pass.

“Let me expand on my point about maxims. Suppose you’re rude to me, so I shoot you. When you (or your heirs) protest, I argue: “By treating me unpleasantly, you thereby became estopped from objecting to my treating you unpleasantly.” Obviously you’d object that not all kinds of unpleasant treatment are interchangeable, and that your maxim endorsed only rudeness and not shooting.”

Yes. My objection is coherent and makes sense. But if I actually aggress against you–use your body without your consent–and you propose some type of punishment, also a use of my body without my consent–then my objection that aggression is wrong, is not coherent. Now, if I slapped you, and you propose to behead me, I *can* then narrow down the maxim of my original action, to achieve a more “proportional” punishment.

That’s how I see proportionatliy being arrived at: by the back and forth of argumentation, guided by the appropriate burdens of proof and burdens of argumentation.

“Well, not all kinds of aggression are interchangeable either. Suppose a statist stabs you because you’re an anarchist; has she endorsed force generally, or only force against anarchists? If the latter, then she’s not estopped from complaining about your retaliation, because your retaliation isn’t force against anarchists.”

As a victim I would want to retaliate against the aggressor, so my maxim would be something like it’s okay to use force of a certain type/level against another even if they try to stop you–and I could show they did that too. If they said, “no no, my force was against YOU and yours is against ME” then that is just particularism again and that would not persuade me that my proposed action is unjust. So I would proceed.

the purpose of the hypothetical dialogue between the aggressor and victim is not to persuade the aggressor. It’s to satisfy the victim–and perhaps the civilized community of her peers–that her proposed use of force against the bad guy is justified.

Yes, but I assume you don’t mean that in the psychologistic sense of merely causing the vicitm to feel justified in retaliating. It has to mean that it would show the victim actually to be justified. So then the details are going to matter.

If they said, “no no, my force was against YOU and yours is against ME” then that is just particularism again and that would not persuade me that my proposed action is unjust.

Okay, but the example I gave wasn’t you-versus-me, it was statist-versus-anarchist. If the justifiability of retaliation depends on what the aggressor’s maxim was, and if the aggressor’s maxim really did make the use of force contingent on the victim’s being an anarchist, then what happens to the estoppel argument?

Well, if you are correct–and my hunch is that you are (I am not sure)–this means it’s inaccurate to say that it’s immoral to violate rights, or to classify rights as a proper subset of morals, as many libertarians do. Rather, we would say that the set of rights intersects the set of morals.

I also somehow only managed to get one response to Gene’s post, despite sending three. The first of the two that didn’t get through argued that libertarians don’t deny the existence of certain positive duties – for instance, they many would say that we ought to help those that cannot help themselves. All libertarians say is that people also have duties, correlative to rights, that restrain how those positive duties get enforced. Taxation, therefore, is opposed by libertarians, not necessarily because people do not have a duty or an obligation to pay for (some of) the sorts of things that the taxes go on, but because taxation involves a breach of duties people owe to the taxpayers, namely not to rob them.

The second post was an analysis of that Walsh argument, and said that the first sentence of the quotation is question begging, and the rest of the argument is counterintuitive, since it would seem to imply that Americans would owe allegiance to any government an invading nation imposed so long as that government provided the “conditions that make free choice possible.”

Roderick, I should have spoken more clearly, but I thought it would be clear enough I meant “enforceable, positive obligation,” such as an enforceable obligation to feed one’s children, which Rothbard quite explicitly rejects.

In that case, I think we have some enforceable positive obligations but their enforceability is derivative from the enforceability of enforceable negative obligations; I’ve argued for that here and here.

Our embeddedness in a network of pre-existing obligations doesn’t show that they’re all enforceable — and in particular doesn’t rule out the possibility that one of the enforceable ones might be a prohibition on the enforcement of some of the others.

And mayhaps Rothbard was wrong. Does that mean all libertarians hold the same views he did? And why not view parental obligations to children as generally being chosen, a consequence of choosing to procreate or engage in the act of procreation?

Indeed, it seems to me that somebody who has intentionally decided to have kids, or intentionally decided to put themselves at risk of producing kids, has chosen o be responsible for those kids when they arrive.

I meant “enforceable, positive obligation,” such as an enforceable obligation to feed one’s children, which Rothbard quite explicitly rejects.

Suppose, for the sake of argument, that there is no enforceable obligation to feed one’s children, but only an unenforceable one. What exactly is the objection to this? Is it that, barred from using force, we would have no ability to ensure that parents feed their children?

If so, I think this position overestimates the effectiveness of coercion and vastly underestimates the effectiveness of voluntary methods. The existence of desirable goals does not mean that coercion is necessarily the best way to achieve them.

The idea that parents have any sort of obligation to their children at all is a very recent one, and certainly not one upheld by tradition, unless by tradition you mean the cultural fads of the last 30 years or so.

In the vast majority of human history, infanticide, particularly by abandonment, has been a common practice that nobody makes a big deal out of.

Let me be like the Red Cross doctors who made sure the waterboarding went by the books here, and step in to second Gene’s position: I totally think it’s in the Rothbardian tradition that people don’t have positive *legal* duties to each other. I am not going to bother looking it up but I’m almost positive Rothbard says something along those lines in Ethics of Liberty. E.g. if you see someone drowning, nobody can touch your property just because you fail to jump in and save the guy. Right?

Yes, it’s true that Rothbard denies the existence of enforceable positive obligations. (He doesn’t even think contracts create enforceable positive obligations; they’re just title transfers and so a mere application of negative rights.) And I’m largely in agreement with Rothbard, though I would disagree with some of his applications (and I would grant things I call derivative positive rights while denying basic positive rights).

So if that’s all Gene means (as indeed he clarifies above), then my quarrel with him is different from what I initially thought it was. But then I disagree with him about this libertarian position being a bad thing, and I also take issue with his wording (meaning not just that it’s unclear but that it gives aid and comfort to a general ideological tendency among anti-libertarians to blur the distinction between “no obligation to help” and “no enforceable obligation to help,” a tendency which in turn paints voluntary solutions as ineffective (see the section beginning “Given the vast inequality in authority” here) and libertarians as selfish bastards (see here)).

Another point: Gene seems to think (or at least writes as though he thinks) that the denial of (basic) enforceable positive rights derives from some dubious view of human beings as self-created atoms who owe nothing to the social world that sustains them. (That’s one reason that I think Gene’s way of looking at things encourages the conflation of “no obligation to help” with “no enforceable obligation to help” even if he doesn’t intend it to.)

But as I see it, the rejection of (basic) enforceable positive rights doesn’t depend on any such view; it just means that you shouldn’t respond to people with force unless they use force first. It stems from a concern for minimal decency, not some atomistic or promethean view of human nature.

Well, I’ve already explained why I think violating libertarian property rights counts as aggression and why I think failing to meet one’s basic positive obligations doesn’t. Now maybe my arguments are no good; that’s entirely possible. Maybe no other libertarians’ arguments for such conclusions are no good either; that’s possible too. But so far you I haven’t seen you spending much time criticising any of these actual arguments; instead you just keep repeating the point that the libertarian position depends on regarding some things as aggression and others as not — as if anyone had denied it.

And I’ve asked you a question that I don’t think you ever answered, so here goes again:

Do you think all conceptions of force, or of aggression, are equally defensible?

Because if not, then the fact that people might disagree about what constitutes force or aggression does not by itself constitute an objection to an argument that relies on some particular conception thereof. It just becomes like the freshman question “who’s to say …?” endlessly repeated in despite of all evidence or argument.

If X has the derivative positive right to Y, then shouldn’t the absence of Y in X call for more than the reason to supply Y to X? I mean, at what point does the will to supply Y to X become the criteria? If, for instance, voluntary means are manifestly insufficient, then what? Give up?